Are You Systemically Important?

RMS Titanic

The first step in figuring out if a financial company is too big to fail, is to figure what it means to be “big”.  Section 113 of the Dodd-Frank Wall Street Reform and Consumer Protection Act authorizes the Financial Stability Oversight Council to determine that a nonbank financial company will be subject to supervision by the Board of Governors of the Federal Reserve System and prudential standards. It’s up to the FSOC to determine whether material financial distress at the nonbank financial company, or the nature, scope, size, scale, concentration, interconnectedness, or mix of the activities of the nonbank financial company, could pose a threat to the financial stability of the United States.

The FSOC has come up with a three stage process. First, based on quantitative criteria, the FSOC narrows the universe of nonbank financial companies by de facto defining “big”.

The Too Big to Fail thresholds are—

  • $50 billion in total consolidated assets;
  • $30 billion in gross notional credit default swaps outstanding for which a nonbank financial company is the reference entity;
  • $3.5 billion of derivative liabilities;
  • $20 billion in total debt outstanding;
  • 15 to 1 leverage ratio of total consolidated assets (excluding separate accounts) to total equity; and
  • 10 percent short-term debt ratio of total debt outstanding with a maturity of less than 12 months to total consolidated assets (excluding separate accounts).

In the second stage of the process, the FSOC will conduct a comprehensive analysis, using the six-category analytic framework, of the potential for the nonbank financial companies identified in Stage 1 to pose a threat to U.S. financial stability. In general, this analysis will be based on a broad range of quantitative and qualitative information available to the  FSOC through existing public and regulatory sources, including industry- and company-specific metrics beyond those analyzed in Stage 1, and any information voluntarily submitted by the company.

Based on the analysis conducted during Stage 2, the FSOC intends to identify the nonbank financial companies that the Council believes merit further review in the third stage. The FSOC will send a notice of consideration to each nonbank financial company that will be reviewed in Stage 3, and will give those nonbank financial companies an opportunity to submit materials within a time period specified by the FSOC .

The  FSOC will determine whether to subject a nonbank financial company to supervision by the Fed and the prudential standards based on the results of the analyses conducted during the three-stage review process.

Looking at those thresholds from the perspective of the private equity industry, it’s the $20 billion in debt threshold that most concerns me.

I’m looking for guidance on whether it should be aggregated across funds and from the portfolio companies. It would seem that debt in a portfolio company should not be consolidated to the fund if it’s not recourse to the fund. Similarly, debt in separate funds should not be consolidated since the debt will not be recourse from one fund to another.

Of course the FSOC could take the opposite view and consolidate all of the debt under a fund manager together for purposes of clearing the Stage 1 hurdle and then work on the “too big to fail” analysis in Stage 2.